How Do I Know Whether to Mediate or Investigate?

- Tuesday, November 11, 2014
mediate or investigate?
How Do I Know Whether to Mediate or Investigate?

The number and type of differing workplace problems is certainly considerable. It is no surprise then that the mechanisms for tackling these various grievances and disputes are similarly numerous. One common question that managers and workplace consultants face is how to choose between differing approaches to dispute resolution. In this article, we take the example of mediation versus investigation, and consider some of the variables that might come into play when deciding on the right path. 

Mediate the misunderstandings 

Often when a mediator (internal or external) is briefed about a problem between colleagues, the key term that crops up is tension. Roles, workspaces, workload division, and different communication styles are just some of the flash points that can cause dysfunction between colleagues and across work sites. The issue might involve two or more people, and more often than not there is roughly equal power between those involved. Mediation is often the go-to strategy for such workplace issues. Mediation aims to identify core problems, enhance understanding, and facilitate workable solutions for the participants to try. As a mediator, it is not within your scope to mandate any set outcomes. Yet it can certainly be helpful to use your knowledge of the situation and the workplace to make suggestions. Ideally though, the parties will have returned to a point of healthier communication and will be able to formulate outcomes and goals that are mutually beneficial. 

Investigate the irregularities 

On the other hand, a workplace investigation is based upon a different set of premises. Unlike mediation – which can often be about simmering disagreements – an investigation will most likely be appropriate where something has already allegedly gone wrong. Unlawful behaviour such as bullying or sexual harassment might have occurred, or suspicions might have started to mount regarding possible fraudulent activity. Rather than seeking to dispel relational and operational dysfunction such as would occur in mediation, the workplace investigator is often utilised to get to the bottom of potential wrongdoing. One or multiple staff members might be examined, depending upon the activity under investigation. Unlike mediation, only one person would attend an interview with the investigator at a time. Confidentiality is extremely important and investigators must be vigilant in ensuring procedural fairness at all times. 

What to watch in mediation

Mediation can be unsuitable in certain circumstances. For example, if an allegation of sexual harassment has been made by an administrative assistant against her line manager, then mediation would not be the appropriate forum for dispute resolution. There is a clear power differential in terms of the parties’ relative positions in the organisation. The openness and mutual contribution required for successful mediation is absent in this respect. Further, considering the alleged unlawful behaviour that has occurred in this instance, the employer has significant duties around the safety of the administrator, investigation of the allegations, and a duty to prevent any further harm or injury via re-traumatisation. Investigation would almost certainly be a preferable course of action. 

Unsuitable investigations

 A workplace investigation can also be an unsuitable option in certain circumstances. Take the situation where bickering and antagonism is occurring within a team, with a danger of escalating into workplace bullying. To start an investigation complete with closed-door interviews and confidentiality requirements would do little to dampen the team’s difficulties, and might in fact serve to inflame rumours and enmity. And if one person is questioned more than others, this might raise the very ire that the employer is hoping to dispel. In this case, an investigation is simply too heavy-handed an approach. Mediation between the key protagonists – facilitated in a way that allows feelings to be vented, issues to be examined, and is aimed at mutually agreeable solutions – is almost certainly the preferable approach in this instance. 

Surveying the scene

 In deciding whether mediation or an investigation will be suitable, it is important to take stock of the situation and the nature of the specific workplace problem. If it appears that wrongdoing has occurred and facts need to be examined and collated, a workplace investigation will often be the best choice. Where equal parties need a space to air grievances and to work towards solutions, mediation provides an appropriate space within which such conflict can be resolved. Always take enough time to accurately assess the scene, to ensure that your choice of approach is the best fit for that circumstance.

WISE Workplace provides certified mediators and fully licenced investigators to handle a range of workplace conflicts and complaints.

Investigating Fraud? When Do You Have to Tell the Respondent?

- Tuesday, October 28, 2014
Investigating Fraud
Investigating Fraud? When Do You Have to Tell the Respondent?

The possibility that an employee might be committing fraud can raise many emotions. As with other misconduct, disappointment can be pronounced. When fraud is suspected against either the business itself or customers, plain anger towards the potential culprit can also arise. It is this high emotion that creates the necessity for cool heads in any fraud investigation. If you are involved in an investigation where fraud is alleged, timing and a methodical plan are crucial to ensure that the process is sound. Depending upon the nature and extent of the fraud, the time at which the respondent should be told and/or interviewed can vary. The quality of any documented evidence you collect can have a notable effect on admissibility or weight in any later court proceedings. For this reason, adhering to procedural fairness in the workplace investigation will be vital. 

Get prepared

Your workplace investigation plan should include a basic timeline of actions. Top of the list will be the gathering of information relevant to the allegations of fraud. Be careful about how and from whom this will be collected. At this stage, as few people as possible should be involved in order to maintain confidentiality and the integrity of the investigation. Collect interview notes, documents, relevant screen dumps and any other physical evidence that purports to implicate the respondent in the fraudulent activity. This is also a good time to fully assess any possible motivations or overt emotional issues with the informant/s. Any later interview with the respondent needs to be based upon available facts – not any aspersions cast by an angry individual. Make a decision on any need for immediate action, particularly whether police need to be called if an employee is AWOL with fraud proceeds, for example, or data or money is currently being misappropriated. Once you have enough valid information, decide upon your next steps. It may be that the allegations against the respondent are clearly groundless. Perhaps there was a mere accounting error, for example. But if the allegations appear to have some substance, it might well be time to draft appropriate interview questions. Sometimes, the first person you talk to after the claimant is the respondent - but only after other documentary evidence has been secured. This gives them an early chance to explain their story, plus reduces the chances of workplace gossip or slander about the respondent snowballing unfairly. 

The interview

Having secured an interview time with the respondent, think through the nature and order of questions that you need to ask. The basic purpose of the meeting should be explained, without any blunt statements or accusations about the alleged fraud. It can help to be quite specific about the concerns raised by any informants: “There are concerns being raised about some anomalies that Brian found in the customer invoicing drive,” or “Your employer has some concerns about repeated discrepancies in reconciliations over the last six months”. Recalling the imperative for procedural fairness in the workplace investigation, maintain this objectivity throughout the remainder of the interview. Allow sufficient time for explanations, and ask inquisitive questions that demonstrate your open mind throughout the process.

Cater for reactions

Fraud is a serious accusation. Whether or not the respondent is involved in such behaviour, their individual emotions of indignation, shame and/ or anger might well surface. Assess whether the interview needs rescheduling, if a support person is needed, as well as any requests for legal representation. Also give the respondent options for response. Indicate that an immediate response is not required and they might prefer to respond at a later (agreed) time. Explain the remainder of your investigation plan and associated timeline for actions, in order to provide some sense of order to what might well be a moment of shock for the respondent. 

Cool heads rule 

The alleged fraud might tempt employers, owners and managers to simply confront the respondent in angry indignation. Perhaps understandable – but such action must be avoided in order to maintain the integrity of the investigative process. Remember, your objective in carrying out a well-constructed workplace investigation concerning the alleged fraud is to gather quality evidence in a fair and consistent manner. How and when to let the respondent know can be a delicate matter, dependent upon the nature and urgency of the facts in question. 

For training in the best ways of handling this type of investigation, WISE Workplace offers a Certificate IV in Government Fraud Control and a Diploma in Government Fraud Control.

Top Forensic Psychologist Says Investigators Must Accept They Can Do Better

Jill McMahon - Tuesday, March 26, 2013

 

A woman suffered a vicious rape in London. There was little information to work with after the initial investigation. The victim had been drinking heavily before the attack and she believed there was little chance of the rapist being caught, let alone convicted. She seemed unable and unwilling to provide important details of what had happened.

An investigative team was assembled, including one of the UK’s top forensic psychologists, Professor Ray Bull. “She was understandably reticent, she didn’t want to say anything that was inconsistent and that might weaken her case,” says Bull. “But a lot had happened to her and we needed to work that out.”

Bull selected an interviewer, a young woman, whom he thought would be most effective. He listened in to the interviews and, drawing on more than 30 years of research in psychology, provided continual advice. He helped her obtain key details, some of which enabled police to connect the attack to another incident, and eventually convict a serial rapist.

Investigative interviewing is at the very core of the system of justice, says Bull, and investigators must strive continually to improve what they do. “It’s essential. The consequences of not being good are horrendous. This is real life - and if you get it wrong you can do a lot of damage to a lot of people.”

Bull conducts research on investigative interviewing of suspects, witnesses and victims, as well as witness memory and voice recognition. He shares his research and that of other academics internationally, consulting to organisations as diverse as the UK’s Home Office, courts, governments, police forces and even large private companies.

While investigators need to have a high level of self-belief and confidence, he says, they need to be open to accepting that they can always do better. At an institutional level, organisations need outside help and to learn from the variety of research that is now available. “I spend a lot of my time going around the world training the trainers,” says Bull, who was recently in Jamaica working with an internal police organisation.

People are not naturally good interviewers. “What you want in an investigation is for a person to give you lots and lots of information,” Bull says. “Socially, we learn the opposite - in normal conversation we ask a lot of closed and leading questions, and that can be very difficult to give up.”

Bull has been closely involved with the substantial changes that have taken place in the UK with investigative interviewing. In 1986, it became a legal requirement for police to record interviews, the first country to do so. It was only when these recordings were analysed that police officers themselves realised they were not interviewing well.

“People guilty of serious wrong-doing were running rings around the investigators,” says Bull.
That led to investment in research and the training of detectives in the mid-1990s. Today, the UK is widely considered a model of cooperation between academics, investigative authorities and the government.
New research is continually challenging commonly-held beliefs, says Bull.

“It’s a common belief, for example, that people who have done something wrong are not going to tell you about their wrongdoing. Well, in fact, there’s an increasing amount of recent and meaningful research that has come to the surprising conclusion that only about 25% of people guilty of wrongdoing will absolutely deny it.

“In fact, about 50% of people who are guilty of wrong-doing are pretty open-minded about how they are going to behave, and wait to see how they are treated by investigators,” says Bull.
Interviewers need not to have a domineering approach if they are to persuade potentially hostile suspects or witnesses to give them information. There need to be pauses and silences in the interview, and establishing and maintaining rapport with the interviewee is one of the “most essential” skills to learn, says Bull.

The key to a good investigation, says Bull, is the content of what people say. “You need to interview in a way that gets people talking, and then you can analyse and compare what they say with other information and that substantially increases the percentage above chance of getting to the truth.”

Bull started working with a major police force in the UK in 1970, helping officers with recall and memory. He’s conducted research on interviewing vulnerable people and authored the first official guidance in the UK on how to interview children. He is regularly asked to provide expert reports on the quality of interviews and testifies in court on average about eight times a year.

During an academic career now spanning more than 40 years, Bull has written or co-authored more than 200 academic articles and books.

He received a Commendation from the London Metropolitan Police for “innovation and professionalism” for his assistance with the London rape case.

He has since received awards and recognition for his work from the British Psychological Society, European Association of Psychology and Law and a special prize for his “extensive contributions to investigative interviewing” from the Scientific Committee of the Fourth International Conference on Investigative Interviewing.

Professor Ray Bull will be visiting Australia in April & May 2013 to conduct a series of master classes on investigative interviewing. Click here for more information.